SHER MUHAMMAD Represented By His Legal Heirs And Others vs SAMUNDARKHAN Represented By His Legal Heirs And Other

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment dated 8-4-1986 of the Lahore High Court; whereby petitioners' (vendees) second appeal arising out of a decree for pre-emption passed in respondents favour, was dismissed.

2. Learned counsel has raised two contentions: Firstly, that the judgment of the High Court is hit by the judgment of this Court in Government of N.-W.F.P. Through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and secondly, that the Punjab Pre-emption Act in so far as it confers a right of pre-emption on a collateral is violative of Article 23 of the Constitution.

3. The proceedings in this case had become past and closed on the day fixed by the Shariat Appellate Bench of the Supreme Court in the cited case i.e., 31st July, 1986, from which date only the relevant pre-emption laws had become ineffective. The petitioner, therefore, cannot be allowed any benefit on the basis of the said judgment.

4. Similarly, the reliance of the learned counsel on Article 23 of the Constitution which enshrines a fundamental right to acquire, hold and dispose of property, is misplaced in the circumstances of this case. Learned counsel was unaware as to whether the fundamental right relied upon was or was not suspended at the times relevant in this case. Even otherwise, although he cited an Indian case which admittedly did not support him, he failed to cite the Pakistani case-law on the point which he admitted goes against him, Instead he argued that the fundamental right to acquire, hold and dispose of property is restricted by the Punjab law of pre-emption which recognizes the right of a collateral to acquire property in preference to a vendee who acquires it through a lawful transaction. It is provided in Article 23 that the fundamental right contained therein is "subject to the Constitution and any reasonable restrictions imposed by law in the public interest". Learned counsel is unable to show that the so-called restriction imposed by the Punjab Pre-emption law conferring right of pre-emption on a collateral was not reasonable nor was it in public interest, in the context of the conditions prevailing after its enactment and before the target date fixed by the Supreme Court in the case of Malik Said Kamal Shah PLD 1986 SC 360. We would not like to make any further comment on this point on account of inadequate assistance.